I don't understand the EDD. Are they encouraging employees to be misbehaved ? I have an employee who in 6 months missed more than 15 days unexcused, did not follow the protocol of notifying the proper persons to report the absences (when the employee did, is was not in a prompt/timely fashion), and since March 2006 the employee clocked in more than 5 minutes late 107 times !!!!!!!!!!

The employee was warned verbally by the owner and office manager on several occasions and finally a written notice was issues illustrating the employee's misconduct and that if the pattern and practice continues the employee would be terminated.

That straightened out the employee for a brief period, the employee began the same tardiness and excessive missed days, and a final verbal warning was issued and shortly thereafter the employee missed another day. The next morning, the employee was told that she was to meet with the boss in the morning (the boss was not in that day). The employee obviously knew what was coming, and picked up her personal belongings and left work telling other employees to "have a nice life" and did not return for the afternoon shift. So by the employee’s actions, those actions constitutes quitting. The employee then shows up in the middle of the day the following day and was told the job would not be offered back as it was assumed the employee quit by abandoning the job.

The employee was immediately given the last paycheck and escorted out of the office. They immediately filed for unemployment and documents illustrating all of the above were sent.

First of all, the employee appeared to have quit. Even if the EDD determined the employee did not quit, there is mounds of evidence in the file to show the employee committed gross misconduct with respect to tardiness and excessively missing work without proper notification or valid written excuses (doctor's notes, child illnesses, etc.). So does the EDD simply vote for the employee initially every time ? What is the appeals process like ? Do I even have a chance ? If I were to not prevail, since the employee was only there for 7.5 months, how long can they received benefits ? Obviously we let the employee hang in there way too long, but the other workers had sympathy for the worker being a single parent.

Any thoughts ? It would seem to me first of all the employee quit by action and if not the termination certainly is with just cause for gross misconduct. So the EDD is encouraging poor behavior. The behavior encouraged is something to the effect of----get a job, behave poorly, get fired, no matter what you do you'll get benefits. What else can an employer do to follow some protocol to hopefully avoid unemployment payments for documented poor employees ?

I will start by saying that CA EDD tends to default to the employee deserving unemployment benefits. That doesn't mean you will always lose, it just means that a tie goes to the employee 100% of the time. You really need to prove that the employee was wrong to win your case.

Having said that, my first question would be "Did you respond to the EDD claim notice?" You can't win if you don't present your evidence.

Assuming that you did, my next question would be "Did you go with quitting or misconduct as your reason for denying benefits?" My guess is that you made the mistake of going with the quitting route. EDD does not automatically deny benefits solely because the employee quit. They will ask why the employee quit. If the employee gives a good answer, they may still award benefits. In your case, the employee can easily state that they in fact did not quit, because they came back to work. You say job abandonment, they say involuntary termination. If you told the same story that you posted to EDD, you left a big hole for EDD to decide that the employee was actually fired.

Had you have gone with misconduct and submitted all of the paperwork showing that this employee was worthy of termination for their acts, you stood a much better chance. If you did in fact do this, do it again for the appeal. If you focused too much on the quitting aspect, focus more on the misconduct for the appeal.

You can win an appeal. It has been done several times before. Appeals result in different people with different views reviewing the information. You stand a fair chance of winning. You also stand a fair chance of losing. Such is CA EDD.

Good luck.

thank you for your prompt response. Since the "quiting" is subjective, during the appeal (haven't received paperwork yet, they let us know by phone first of their decision) I will pursue that avenue as there is a ton of objective documentation. Warnings, written warnings, time clock evidence, and unexcused absenses. Hopefully that will be enough to warrant a judgment on my behalf.

Good luck to you. I don't begrudge most folks from receiving UI benefits; Lord knows I've had to do it a few times in my life. But, sometimes, the ALJs just need to get real. :rolleyes: